The Victorian Parliament’s inquiry into anti-vilification protection has made recommendations that recognise the harm caused by racial and other kinds of vilification and suggested useful improvements to current laws and systems.
‘We are pleased the Committee has recommended increased protections for Victorians who experience hate speech and the removal of technical barriers that currently make it almost impossible to prove vilification,’ said Melanie Schleiger, Program Manager Equality Law.
Last year we made a joint submission to the Inquiry with the Victorian Aboriginal Legal Service (VALS), calling for stronger protections against hate speech in Victoria. Representatives from our organisation and VALS, and VALS’s client, Gunditjmara elder Charmaine Clarke, gave evidence to the inquiry that current laws around hate speech are difficult to use and too technical for victims to achieve justice.
In 2019 Ms Clarke attempted to bring a racial vilification case after she experienced racism in a café in her regional town. She told the Committee: ‘I put myself through the effort to pursue justice, to call racism to account publicly in my small town, but like many other cases, it was to no avail. I was told by the Police in March 2020, that I did not meet the threshold in their opinion’.
‘Today’s report shows the committee expressly recognises that for Aboriginal and Torres Strait Islander people, discrimination, harassment and vilification continue to be commonplace and this mostly stems from systemic racism,’ said Melanie.
‘This has resulted in intergenerational trauma, systemic and structural exclusion, and serious, multiple and ongoing harms. The Committee also recognised the increase in racially motivated prejudice and discrimination experienced by African-Australian communities,’ she said.
Recommendations for stronger protections
The Committee agreed with VALS, Victoria Legal Aid and many other organisations, that to provide meaningful protection from hate speech, Victoria’s laws need to be stronger, easier to use and better enforced. It has recommended the extension of anti-vilification protections in both criminal and civil law to cover gender, sex, sexual orientation, gender identity and expression, sex characteristics, intersex status, disability, HIV/AIDS status and personal association. The Committee also recommends changing the legal test to ensure more hateful conduct is prohibited by the law and to provide a way for the harm of vilification to be seen from the perspective of the victim.
‘Importantly, the Committee recognises in its report that better protections will do little to stop the rise of hate speech in our community without well-resourced enforcement powers’, said Melanie.
The Committee recommended that the Victorian Equal Opportunity and Human Rights Commission is given a range of powers to ensure it can support people to bring complaints about hate speech and investigate vilification. It also recommended creating a positive duty that requires organisations to take reasonable and proportionate measures to eliminate vilification. But it stopped short of recommending that the Commission have the power to enforce vilification laws, although it recommended that the Government consider this.
'The Victorian Equal Opportunity and Human Rights Commission needs appropriate enforcement powers to stop Victorians being subjected to hate speech or conduct because of their race, religion, disability, HIV/AIDS status, gender identity or sexual orientation. We see the barriers that currently exist for our clients and it cannot just be left to victims to take action against hate speech’ Melanie said.
Recommendations for strategic litigation
We also welcome the Committee’s recognition that strategic litigation is necessary to develop case law that deters future incidents, raises awareness of anti-vilification protections and reduces the onus on individuals to pursue matters. The Committee recommended that the Victorian Aboriginal Legal Service and Victoria Legal Aid be funded to engage in strategic litigation on vilification matters.
‘Too often we see clients who are reluctant to take legal action when they are subjected to hate speech because of the lack of similar cases and the personal toll it takes on them. Recognising the need for better case law and funding to make this happen sends a strong clear message to all Victorians that standing up to hate speech matters,’ said Melanie.
We look forward to working with government and our partners to support the implementation of these important recommendations.
More information
Read the Inquiry into Anti-vilification report.
Read VALS media about the Committee’s report.
Read Charmaine Clarke’s statement to the inquiry.
Reviewed 14 April 2022